1024 NOTES STATE BANS ON DEBTORS’ PRISONS AND CRIM.docx

1024
NOTES
STATE BANS ON DEBTORS’ PRISONS
AND CRIMINAL JUSTICE DEBT
Since the 1990s, and increasingly in the wake of the Great
Reces-
sion, many municipalities, forced to operate under tight
budgetary
constraints, have turned to the criminal justice system as an
untapped
revenue stream.1 Raising the specter of the “debtors’ prisons”
once
prevalent in the United States,2 imprisonment for failure to pay
debts
owed to the state has provoked growing concern in recent
years.3
These monetary obligations are not contractual liabilities in the
ledger
of an Ebenezer Scrooge,4 but sums that the state itself assesses
through
the criminal justice system. Sometimes called “legal financial
obliga-
tions” (LFOs), the total debt generally includes a mix of fines,
fees,
court costs, and interest.5 And unlike civil collection actions
(for the

most part6), incarceration is very much on the menu of
sanctions that
the unpaid creditor, usually a municipality,7 can impose.
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
1 See, e.g., Nicholas M. McLean, Livelihood, Ability to Pay,
and the Original Meaning of the
Excessive Fines Clause, 40 HASTINGS CONST. L.Q. 833, 886–
87 (2013); Alexandra Natapoff,
Misdemeanor Decriminalization, 68 VAND. L. REV. 1055,
1098–99 (2015).
2 See infra section III.A, pp. 1034–38.
3 See, e.g., Alec Karakatsanis, Policing, Mass Imprisonment,
and the Failure of American
Lawyers, 128 HARV. L. REV. F. 253, 262–63 (2015); McLean,
supra note 1, at 885–91; Campbell
Robertson, Suit Alleges “Scheme” in Criminal Costs Borne by
New Orleans’s Poor, N.Y. TIMES
(Sept. 17, 2015), http://www.nytimes.com/2015/09/18/us/suit-
alleges-scheme-in-criminal-costs
-borne-by-new-orleanss-poor.html. At the same time, however,
legal commentators have been
concerned about imprisonment for criminal debt since at least
the 1960s. See, e.g., Derek A.
Westen, Comment, Fines, Imprisonment, and the Poor: “Thirty
Dollars or Thirty Days,” 57
CALIF. L. REV. 778, 787 n.79 (1969) (listing sources).
4 In addition to featuring in DAVID COPPERFIELD (1850)
and LITTLE DORRIT (1857),
debtors’ prisons lurk in the shadows of Dickens’s classic A
CHRISTMAS CAROL (1843). Those
who did not pay the debts so meticulously recorded by the
shivering Bob Cratchit could have
been thrown in prison by Scrooge — part of why he was so
hated and feared by his debtors. See

CHARLES DICKENS, A CHRISTMAS CAROL AND OTHER
CHRISTMAS BOOKS 71–72 (Robert
Douglas-Fairhurst ed., Oxford Univ. Press 2006) (“[B]efore [our
debt is transferred from Scrooge]
we shall be ready with the money; and even though we were
not, it would be a bad fortune in-
deed to find so merciless a creditor in his successor.”).
5 See, e.g., State v. Blazina, 344 P.3d 680, 680–81, 684 (Wash.
2015); ACLU OF WASH. & CO-
LUMBIA LEGAL SERVS., MODERN-DAY DEBTORS’
PRISONS 3 (2014), http://aclu-wa.org/sites
/default/files/attachments/Modern%20Day%20Debtor%27s%20P
rison%20Final%20(3).pdf [http://
perma.cc/X66N-G5EA] (“[T]he average amount of LFOs
imposed in a felony case is $2540 . . . .”);
Developments in the Law — Policing, 128 HARV. L. REV.
1706, 1727–29 (2015).
6 In some circumstances, courts can exercise their contempt
power to imprison debtors for
failure to pay civil debts. See, e.g., Lea Shepard, Creditors’
Contempt, 2011 BYU L. REV. 1509,
1526–27.
7 See Telephone Interview with Douglas K. Wilson, Colo. State
Pub. Def., Office of the State
Pub. Def. (Oct. 21, 2014) (notes on file with Harvard Law
School Library).
2016] STATE BANS ON DEBTORS’ PRISONS 1025
This practice both aggravates known racial and socioeconomic
in-
equalities in the criminal justice system8 and raises additional
con-

cerns. First, assessing and collecting such debt may not be
justifiable
on penal grounds. Instead, it seems to be driven primarily by
the need
to raise revenue, an illegitimate state interest for punishment,
and one
that, in practice, functions as a regressive tax.9 Second,
imprisonment
for criminal justice debts has a distinctive and direct financial
impact.
The threat of imprisonment may create a hostage effect, causing
debt-
ors to hand over money from disability and welfare checks, or
induc-
ing family members and friends — who aren’t legally
responsible for
the debt — to scrape together the money.10
Take the story of Harriet Cleveland as a window into the
problem:
Cleveland, a forty-nine-year-old mother of three from
Montgomery,
Alabama, worked at a day care center.11 Starting in 2008,
Cleveland
received several traffic tickets at a police roadblock in her
Montgom-
ery neighborhood for operating her vehicle without the
appropriate in-
surance.12 After her license was suspended due to her
nonpayment of
the ensuing fines and court costs, she continued to drive to work
and
her child’s school, incurring more debt to Montgomery for
driving
without a license.13 Over the course of several years, including
after

she was laid off from her job, Cleveland attempted to “chip[]
away” at
her debt — while collection fees and other surcharges ballooned
it up
behind her back.14 On August 20, 2013, Cleveland was
arrested at her
home while babysitting her two-year-old grandson.15 The next
day, a
municipal judge ordered her to pay $1554 or spend thirty-one
days in
jail.16 She had no choice but to “sit out” her debt at the rate of
$50 per
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
8 See, e.g., WILLIAM J. STUNTZ, THE COLLAPSE OF
AMERICAN CRIMINAL JUSTICE 2,
6–7 (2011); Karakatsanis, supra note 3, at 254; Natapoff, supra
note 1, at 1065.
9 See Natapoff, supra note 1, at 1098 & n.208; Developments
in the Law — Policing, supra
note 5, at 1734. This concern is amplified by the growing trend
toward outsourcing portions of
the criminal justice system, such as collection, to private actors
like Sentinel Offender Services, a
probation company that wields the threat of imprisonment via
contract with the state. See id. at
1726–27.
10 See, e.g., Robertson, supra note 3 (describing how a
debtor’s mother and sister “scraped to-
gether what money they [could]”).
11 See Sarah Stillman, Get Out of Jail, Inc., NEW YORKER
(June 23, 2014), http://www
.newyorker.com/magazine/2014/06/23/get-out-of-jail-inc
[http://perma.cc/5SU8-EF72].
12 Id.

13 Id.
14 Id.; see also Amended Complaint at 2, Cleveland v. City of
Montgomery, No. 2:13-cv-
00732 (M.D. Ala. Nov. 12, 2013) [hereinafter Complaint,
Cleveland v. Montgomery], http://
www. s p l c e n t e r .o r g /s i t e s / d e f a u l t / f i l e s / d o
w n l o a d s / c a s e / a m e n d e d _ c o m p l a i n t- _h a r r i
e t _ c l e v e l a n d _ 0 . p d
f [http://perma.cc/Y4CM-99AK].
15 Complaint, Cleveland v. Montgomery, supra note 14, at 2;
see Stillman, supra note 11.
16 Complaint, Cleveland v. Montgomery, supra note 14, at 4.
1026 HARVARD LAW REVIEW [Vol. 129:1024
day.17 In jail, “[s]he slept on the floor, using old blankets to
block the
sewage from a leaking toilet.”18
Stories like Cleveland’s have inspired a naissance of advocacy
and
scholarship that challenge the legal basis for incarceration upon
non-
payment of criminal justice debts.19 But existing approaches
have
failed to recognize an alternate potential font of authority: state
bans
on debtors’ prisons.20 Most commentators have thus far
focused on
the 1983 Supreme Court case Bearden v. Georgia.21 Bearden
held that
a court cannot, consistently with the Fourteenth Amendment,
revoke

parole for failure to pay criminal debt when the debtor has made
“suf-
ficient bona fide” efforts to pay.22 Bearden established a
powerful (al-
beit somewhat vague) standard that protects debtors whose
inability to
pay isn’t willful, by requiring courts to hold ability-to-pay
hearings.23
But, as argued below, certain types of criminal justice debtors
fall un-
der an even higher degree of protection than Bearden provides.
Another type of legal claim should be considered alongside
Bearden: one based on the many state constitutional bans on
debtors’
prisons.24 These state bans were enacted over several decades
in the
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
17 Id. at 7.
18 Stillman, supra note 11. Cleveland sued the city, alleging
that Montgomery’s debt collection
procedures and her resultant incarceration violated the Alabama
and U.S. Constitutions. See
Complaint, Cleveland v. Montgomery, supra note 14, at 2–3.
They ultimately settled. See Judicial
Procedures of the Municipal Court of the City of Montgomery
for Indigent Defendants and Non-
payment, Cleveland v. City of Montgomery, No. 2:13-cv-00732
(M.D. Ala. Sept. 12, 2014) [herein-
after Settlement Agreement, Cleveland v. Montgomery], h t t p :
/ / w w w . s p l c e n t e r . o r g / s i t e s / d e f a u l t / f i l e s
/ d o w n l o a d s / c a s e / e x h i b i t _ a _ t o _ j o i n t _ s e t
t l e m e n t _ a g r e e m e n t _ - _ j u d i c i a l _ p r o c e d u r
e s - _ 1 4 0 9 1 2

. p d f [http://perma.cc/ZAH6-DFQS]. Still, as described below,
there’s reason to suspect such set-
tlements will not completely solve the problem. Cf. infra notes
55–59 and accompanying text (dis-
cussing judicially created solutions in certain states).
19 See infra Part II, pp. 1032–34.
20 See infra Part III, pp. 1034–43.
21 461 U.S. 660 (1983).
22 Id. at 662; see also id. at 661–62. The Court also required
that a court consider whether
alternate sanctions (such as a restructured payment schedule or
community service) could meet
the state’s interest in punishment and deterrence before
resorting to incarceration. See id. at 672.
23 Under Bearden, what counts as “bona fide efforts” was left
unspecified, apart from vague
references to searching for employment or sources of credit.
See id. at 668. This kind of open-
ended standard, taken on its own terms, may generate a number
of problems. It may leave too
much discretion in the hands of the same legal actors
responsible for the state of play. See Recent
Legislation, 128 HARV. L. REV. 1312, 1316 (2015). And it
seems ill-equipped to protect impover-
ished debtors who see no reason to embark upon, much less
document, futile searches for credit or
employment.
24 While outside the scope of analysis here, Professor Beth
Colgan has argued that incarcera-
tion for criminal justice debt might also violate the Excessive
Fines Clause of the Eighth
Amendment. See U.S. CONST. amend. VIII; Beth A. Colgan,
Reviving the Excessive Fines
Clause, 102 CALIF. L. REV. 277 (2014). Others assert that
certain prison conditions arguably vio-
late the Cruel and Unusual Punishments Clause or the

Thirteenth Amendment’s prohibition on
involuntary servitude. See U.S. CONST. amend. VIII; id.
amend XIII; Class Action Complaint at
57–58, Jenkins v. City of Jennings, No. 4:15-cv-00252 (E.D.
Mo. Feb. 8, 2015) [hereinafter
first half of the nineteenth century, as a backlash against
imprisonment
for commercial debt swept the nation. While the contemporary
dis-
cussion on criminal justice debt often makes cursory reference
to this
historic abolition of debtors’ prisons,25 the legal literature
contains no
sustained analysis of whether the state bans on debtors’ prisons
might
invalidate some of what’s going on today.
This Note takes a first pass at this missing constitutional
argument.
Part I describes the contemporary problem with criminal justice
debt
in greater detail. Part II covers a range of preexisting federal
constitu-
tional limitations on imprisonment for criminal justice debt.
Part III
introduces the state bans and argues that they should be held to
apply
to some fines for regulatory offenses, costs, and definitionally

civil
debts — both as a matter of sound interpretation of state law
and as a
matter of federal equal protection doctrine. Leaving traditional
fines
and restitution outside the scope of the state bans, this proposal
would
nonetheless engage with the most problematic types of criminal
justice
debt. Part IV explains why it makes good sense to subject the
new
debtors’ prisons to the two-tiered regulation of both Bearden
and these
state bans, in the form of new imprisonment-for-debt claims.
I. CRIMINAL JUSTICE DEBT
Since a large portion of criminal justice debt is routed through
mu-
nicipal courts that aren’t courts of record,26 systemic,
nationwide data
aren’t easily generated. But out of the mix of disturbing
narratives
and reports one can distill several common elements.
Underlying the
debts is a range of crimes, violations, and infractions, including
shop-
lifting, domestic violence, prostitution, and traffic violations.27
The
monetary obligations come under a mix of labels, including
fines, fees,
costs, and interest, and are generally imposed either at
sentencing or as
a condition of parole.28 Arrest warrants are sometimes issued
when
debtors fail to appear in court to account for their debts, but

courts of-
ten fail to give debtors notice of summons, and many debtors
avoid the
courts out of fear of imprisonment.29 When courts have
actually held
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
Complaint, Jenkins v. Jennings],
http://equaljusticeunderlaw.org/wp/wp-content/uploads/2015/02
/Complaint-Jennings-Debtors-Prisons-FILE-STAMPED.pdf
[http://perma.cc/LM7S-LZW2].
25 See, e.g., Sarah Dolisca Bellacicco, Note, Safe Haven No
Longer: The Role of Georgia Courts
and Private Probation Companies in Sustaining a De Facto
Debtors’ Prison System, 48 GA. L.
REV. 227, 234 (2013).
26 See, e.g., Telephone Interview with Douglas K. Wilson,
supra note 7.
27 See id.
28 See sources cited supra note 5.
29 See CIVIL RIGHTS DIV., U.S. DEP’T OF JUSTICE,
INVESTIGATION OF THE FERGUSON
POLICE DEPARTMENT 45–50 (2015) [hereinafter DOJ,
FERGUSON INVESTIGATION], http://
w w w . j u s t i c e . g o v / s i t e s / d e f a u l t / f i l e s / o p
a / p r e s s - r e l e a s e s / a t t a c h m e n t s / 2 0 1 5 / 0 3 / 0
4 / f e r g u s o n _ p o l i c e
_ d e p a r t m e n t _ r e p o r t . p d f [http://perma.cc/8CQS-
NZ9F].

the ability-to-pay hearings required by Bearden30 — and
they’ve often
neglected to do so31 — such hearings have been extremely
short, as
many misdemeanor cases are disposed of in a matter of
minutes.32
Debtors are almost never provided with legal counsel.33 The
total
amount due fluctuates with payments and added fees, sometimes
wild-
ly, and debtors are often unaware at any given point of the
amount
they need to pay to avoid incarceration or to be released from
jail.34
Multiple municipalities have allowed debtors to pay down their
debts
by laboring as janitors or on a penal farm.35 One Alabama
judge
credited debtors $100 for giving blood.36
The problem is widespread. In Colorado, Linda Roberts’s
offense
of shoplifting $21 worth of food resulted in $746 of court costs,
fines,
fees, and restitution.37 Ms. Roberts, who lived exclusively on
SNAP
and Social Security disability benefits, “sat out” her debt by
spending
fifteen days in jail.38 And in Georgia, Tom Barrett was
sentenced to
twelve months of probation for stealing a can of beer.39 But
six
months in, despite selling his blood plasma, Barrett still
couldn’t pay
the costs associated with his sentence — including a $12-per-
day ankle

bracelet, a $50 set-up fee, and a $39-per-month fee to a private
proba-
tion company — and faced imprisonment.40 A 2010 Brennan
Center
report flagged problematic “criminal justice debt” practices in
fifteen
states, including California, Texas, Michigan, Pennsylvania, and
New
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
30 See Bearden v. Georgia, 461 U.S. 660, 672 (1983).
31 See, e.g., Complaint, Jenkins v. Jennings, supra note 24, at
43 (“The City prosecutor and
City judge do not conduct indigence or ability-to-pay hearings.
Regular observers of the City
court have never once seen an indigence or ability to pay
hearing conducted in the past decade.”).
32 See, e.g., HUMAN RIGHTS WATCH, PROFITING FROM
PROBATION 4–5 (2014), https://
www.hrw.org/sites/default/files/reports/us0214_ForUpload_0.pd
f [http://perma.cc/Y8BN-GVZ2];
Karakatsanis, supra note 3, at 262.
33 See, e.g., Karakatsanis, supra note 3, at 263–64.
34 See, e.g., ALICIA BANNON ET AL., BRENNAN CTR.
FOR JUSTICE, CRIMINAL JUSTICE
DEBT: A BARRIER TO REENTRY 18 (2010),
http://www.brennancenter.org/sites/default/files
/legacy/Fees%20and%20Fines%20FINAL.pdf
[http://perma.cc/6SVB-KZKQ]; HUMAN RIGHTS
WATCH, supra note 32, at 23.
35 See Class Action Complaint at 1–3, Bell v. City of Jackson,
No. 3:15-cv-732 (S.D. Miss. Oct.
9, 2015) [hereinafter Complaint, Bell v. Jackson],
https://assets.documentcloud.org/documents
/2455850/15-10-09-class-action-complaint-stamped.pdf

[https://perma.cc/3CKT-XXX4] (describing
reduction of debt at a rate of $58 per day of work);
Karakatsanis, supra note 3, at 262 ($25 per
day).
36 Campbell Robertson, For Offenders Who Can’t Pay, It’s a
Pint of Blood or Jail Time, N.Y.
TIMES (Oct. 19, 2015),
http://www.nytimes.com/2015/10/20/us/for-offenders-who-cant-
pay-its-a
-pint-of-blood-or-jail-time.html.
37 Recent Legislation, supra note 23, at 1314.
38 Id. at 1314 & n.25.
39 Joseph Shapiro, Measures Aimed at Keeping People Out of
Jail Punish the Poor, NPR (May
24, 2014, 4:58 PM),
http://www.npr.org/2014/05/24/314866421/measures-aimed-at-
keeping-people
-out-of-jail-punish-the-poor.
40 Id.
York.41 A 2010 ACLU report claimed that required indigency
inquir-
ies — the heart of the constitutional protection provided by
Bear-
den — were markedly absent in Louisiana, Michigan, Ohio,
Georgia,
and Washington.42
And the problem is deeply engrained, at least in some places.
The
best evidence to date is the Department of Justice’s 2015 report

on
the Ferguson Police Department. The investigation revealed
that Fer-
guson law enforcement — including both police and the
municipal
court — was deployed to raise revenue.43 In March 2010, the
city’s fi-
nance director emailed then–Police Chief Thomas Jackson:
[U]nless ticket writing ramps up significantly before the end of
the year, it
will be hard to significantly raise collections next year. What
are your
thoughts? Given that we are looking at a substantial sales tax
shortfall,
it’s not an insignificant issue.44
In 2013, the municipal court issued over 9000 warrants for
failure to
pay fines and fees resulting in large part from “minor violations
such
as parking infractions, traffic tickets, or housing code
violations.”45
The city also tacked on fines and fees for missed appearances
and
missed payments — and used arrest warrants as a collection
device.46
The problem has become especially severe — or has at least
drawn
increased attention — within the past several years.47 In 2015,
non-
profits Equal Justice Under Law and ArchCity Defenders sued
the cit-
ies of Ferguson48 and Jennings,49 Missouri, alleging that they
were

–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
41 See BANNON ET AL., supra note 34, at 6.
42 See ACLU, IN FOR A PENNY: THE RISE OF AMERICA’S
NEW DEBTORS’ PRISONS 17
(2010), http://www.aclu.org/files/assets/InForAPenny_web.pdf
[http://perma.cc/2C7C-X56S] (Loui-
siana); id. at 29 (Michigan); id. at 43 (Ohio); id. at 55
(Georgia); id. at 65 (Washington).
43 See DOJ, FERGUSON INVESTIGATION, supra note 29, at
3, 9–10.
44 Id. at 10.
45 Id. at 3.
46 See id. at 42, 53. Residents of Ferguson also suffered
unconstitutional stops and arrests, see
id. at 18, misleading information about court dates and
appearances, see id. at 46, and, of course,
the death of Michael Brown at the hands of the police in August
2014, see id. at 5.
47 See, e.g., Joseph Shapiro, Civil Rights Attorneys Sue
Ferguson over “Debtors Prisons,” NPR
(Feb. 8, 2015, 9:03 PM),
http://www.npr.org/blogs/codeswitch/2015/02/08/384332798/civ
il-rights
-attorneys-sue-ferguson-over-debtors-prisons (“We’ve seen the
rise of modern American debtors
prisons, and nowhere is that phenomenon more stark than in
Ferguson and Jennings municipal
courts and municipal jails . . . .” (quoting lawyer Alec
Karakatsanis)); The New Debtors’ Prisons,
THE ECONOMIST (Nov. 16, 2013),
http://www.economist.com/news/united-states/21589903-if-you
-are-poor-dont-get-caught-speeding-new-debtors-prisons
[http://perma.cc/5M9N-74HT].
48 See Class Action Complaint, Fant v. City of Ferguson, No.

4:15-cv-00253 (E.D. Mo. Feb.
8, 2015) [hereinafter Complaint, Fant v. Ferguson], h t t p : / / e
q u a l j u s t i c e u n d e r l a w . o r g / w p / w p - c o n t e n
t
/ u p l o a d s / 2 0 1 5 / 0 2 / C o m p l a i n t - F e r g u s o n -
D e b t o r s - P r i s o n - F I L E - S T A M P E D . p d f [h t t
p : / / p e r m a . c c
/MVJ9-Q9CQ]. As of October 2015, the case had survived a
contentious motion to dismiss — the
judge had initially dismissed, then reconsidered and reinstated,
two allegations of unconstitutional
imprisonment for debt — and was moving toward trial.
49 See Complaint, Jenkins v. Jennings, supra note 24.
running the equivalents of modern debtors’ prisons.50 The
Ferguson
complaint described a “Kafkaesque journey through the debtors’
pris-
on network of Saint Louis County — a lawless and labyrinthine
scheme of dungeon-like municipal facilities and perpetual
debt.”51
Equal Justice Under Law and the Southern Poverty Law Center
have
also sued a handful of other municipalities,52 and the ACLU
has pur-
sued an awareness campaign in a number of states, sending
letters to
judges and mayors in Ohio53 and Colorado.54
Facing this pressure from advocates and litigants, cities, courts,
and

legislatures have made some changes. The city of Montgomery
settled
in 2014, agreeing to conduct the constitutionally required
hearings,
produce audio recordings,55 provide public defenders, and
adopt a
“presumption of indigence” for defendants at or below 125% of
the
federal poverty level.56 In Ohio, Chief Justice Maureen
O’Connor
took rapid action, issuing guidance materials to clarify the
procedures
trial and municipal judges should take before imprisoning
debtors for
failure to pay.57 The Supreme Court of Washington confirmed
in
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
50 See Complaint, Fant v. Ferguson, supra note 48, at 3.
51 Id. at 7.
52 Two lawsuits against the City of Montgomery have settled.
See Settlement Agreement,
Cleveland v. Montgomery, supra note 18; Agreement to Settle
Injunctive and Declaratory Relief
Claims, Mitchell v. City of Montgomery, No. 2:14-cv-00186
(M.D. Ala. Nov. 17, 2014) [hereinafter
Settlement Agreement, Mitchell v. Montgomery],
http://equaljusticeunderlaw.org/wp/wp-content
/uploads/2014/07/Final-Settlement-Agreement.pdf
[http://perma.cc/R8S9-HW4N]. As of the time
of publication, Equal Justice Under Law had litigated (or is
litigating) similar issues against Jen-
nings, Missouri; Ferguson, Missouri; New Orleans, Louisiana;
Jackson, Mississippi; and Ruther-
ford County, Tennessee. See Permanent Injunction, Jenkins v.

City of Jennings, No. 4:15-cv-00252
(E.D. Mo. Sept. 16, 2015); Complaint, Fant v. Ferguson, supra
note 48; EQUAL JUSTICE UNDER
THE LAW, Shutting Down Debtors’ Prisons,
http://equaljusticeunderlaw.org/wp/current-cases
/ending-debtors-prisons/ [http://perma.cc./56WT-6RLC] (last
visited Nov. 23, 2015).
53 See Letter from Christine Link, Exec. Dir., ACLU of Ohio,
et al., to Chief Justice Maureen
O’Connor, Ohio Supreme Court (Apr. 3, 2013),
http://www.acluohio.org/wp-content/uploads/2013
/04/2013_0404LetterToOhioSupremeCourtChiefJustice.pdf
[http://perma.cc/R3T5-WPEL].
54 See Recent Legislation, supra note 23, at 1313 n.13. In
2012 and 2013, the ACLU of Colorado
sent letters to Chief Justice Bender of the Colorado Supreme
Court and three Colorado municipali-
ties. See, e.g., Letter from Mark Silverstein, Legal Dir., ACLU
of Colo., and Rebecca T. Wallace,
Staff Att’y, ACLU of Colo., to Chief Justice Michael Bender,
Colo. Supreme Court, and Judge John
Dailey, Chair, Criminal Procedure Comm. (Oct. 10, 2012),
http://static.aclu-co.org/wp-
content/uploads/2013/12/2012-10-10-Bender-Dailey-
Wallace.pdf [http://perma.cc/5F9Y-U7RC];
Letter from Rebecca T. Wallace, Staff Att’y, ACLU of Colo.,
and Mark Silverstein, Legal Dir.,
ACLU of Colo., to Herb Atchison, Mayor of Westminster, Colo.
(Dec. 16, 2013), http://static.aclu-co
.org/wp-content/uploads/2014/02/2013-12-16-Atchison-
ACLU.pdf [http://perma.cc/7ZZS-X3RL].
55 See Settlement Agreement, Mitchell v. Montgomery, supra
note 52, at 2–3.
56 See Settlement Agreement, Cleveland v. Montgomery, supra
note 18, at 1.
57 See OFFICE OF JUDICIAL SERVS., SUPREME COURT

OF OHIO, COLLECTION OF FINES
AND COURT COSTS IN ADULT TRIAL COURTS (2015),
http://www.supremecourt.ohio.gov
/Publications/JCS/finesCourtCosts.pdf [http://perma.cc/43AE-
V32F]; see also Taylor Gillan, Ohio
Supreme Court Warns Judges to End “Debtors’ Prisons,”
JURIST (Feb. 7, 2014, 7:14 AM),
h t t p : / / j u r i s t . o r g / p a p e r c h a s e / 2 0 1 4 / 0 2 / o
h i o - s u p r e m e - c o u r t - w a r n s - j u d g e s - t o - e n d
- d e b t o r s - p r i s o n s . p h p
[http://perma.cc/EA4L-BKHJ].
March 2015 that the sentencing judge must make “an
individualized
inquiry into the defendant’s current and future ability to pay
before
the court imposes [criminal justice debt].”58 And in August
2015, Fer-
guson Municipal Judge Donald McCullin withdrew almost
10,000 ar-
rest warrants issued before 2015.59 As for legislatures, in
2014, the
Colorado General Assembly almost unanimously passed a bill
requir-
ing courts to make ability-to-pay determinations on the record
before
imprisoning debtors for nonpayment of debt.60 And in 2015,
both the
Georgia61 and Missouri62 legislatures passed laws addressing
the issue.

Perhaps this pushback will resolve the concerns described
above.
But there are many reasons to think there’s a long road ahead.
First,
some of the responses leave unresolved the substantive
definition of
indigence for the purposes of ability-to-pay hearings.63
Without such a
definition, discretion is left to the same courts that have been
imprison-
ing criminal debtors thus far.64 Second, even tightly written
laws,65
settlements, and resolutions need to be enforced, which requires
ac-
countability and monitoring.66 Abolishing the new debtors’
prisons is
as much a test of moral and societal conviction as it is of sound
draft-
ing. And finally (of course) some states haven’t taken much
action, if
any, to address the issue — nor has it been raised in the federal
courts
within the last decade, apart from the litigation previously
discussed.
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
58 State v. Blazina, 344 P.3d 680, 685 (Wash. 2015).
59 See Krishnadev Calamur, A Judge’s Order Overhauls
Ferguson’s Municipal Courts, THE
ATLANTIC (Aug. 25, 2015),
http://www.theatlantic.com/national/archive/2015/08/judges-
order
-overhauls-fergusons-municipal-courts/402232
[http://perma.cc/7R4J-CPCZ]. Additionally, the
Supreme Court of Missouri recently amended its rules to require

municipal judges to push back
deadlines or allow installment plans for debtors who couldn’t
pay court costs, fines, and fees. See
Order Dated December 23, 2014, re: Rule 37.65 Fines,
Installment or Delayed Payments — Re-
sponse to Nonpayment (Mo. Dec. 23, 2014) (en banc),
http://www.courts.mo.gov/sup/index
. n s f / d 4 5 a 7 6 3 5 d 4 b f d b 8 f 8 6 2 5 6 6 2 0 0 0 6 3 2 6
3 8 / f e 6 5 6 f 3 6 d 6 b 5 1 8 a 8 8 6 2 5 7 d b 8 0 0 8 1 d 4 3 c
[h t t p : / / p e r m a . c c
/BTX3-4ERC].
60 See Recent Legislation, supra note 23, at 1313, 1315.
61 Georgia’s law provides guidance for courts in indigency
determinations. See Act of May 5,
2015, 2015 Ga. Laws 422.
62 Missouri’s law clamps down on raising revenue through
traffic fines and removes incarcera-
tion as a penalty for traffic offenses. See Act of July 9, 2015,
2015 Mo. Laws 453.
63 See Recent Legislation, supra note 23, at 1316–19
(criticizing the lack of such a definition in
recent Colorado legislation).
64 See id. at 1316.
65 The Missouri legislation, for example, seems to constrain
municipal collection of criminal
justice debt within certain domains. See Act of July 9, 2015,
2015 Mo. Laws at 457 (codified at
MO. REV. STAT. § 479.353(2) (West, Westlaw through 2015
Veto Sess.)) (prohibiting confinement
for traffic violations except in enumerated situations).
66 See, e.g., Telephone Interview with Nathan Woodliff-
Stanley, Exec. Dir., ACLU of Colo.
(Oct. 23, 2014) (notes on file with Harvard Law School
Library); Telephone Interview with Alec
Karakatsanis, Co-Founder, Equal Justice Under Law (Apr. 14,
2015) (notes on file with Harvard

Law School Library).
II. FEDERAL CONSTITUTIONAL LIMITATIONS
Legal commentators have long recognized that the federal
constitu-
tion imposes limits on imprisonment for criminal justice debt
under
the Equal Protection and Due Process Clauses. This Part
outlines
those limits, which stem from two main lines of cases in the
1970s
and early 1980s, and undergird almost all debt-imprisonment
litigation
today.
The first line of cases prohibits states from discriminating on
the
basis of indigence when contemplating imprisonment for
nonpayment
of criminal justice debt. In Williams v. Illinois,67 the
defendant’s fail-
ure to pay a fine and costs would have resulted in a term of
imprison-
ment beyond the statutory maximum.68 And in Tate v. Short,69
the de-
fendant’s failure to pay would have resulted in imprisonment
when the
statute didn’t allow for imprisonment at all.70 The Court struck
down
imprisonment in each case.71 The third and most discussed

case in the
trilogy, Bearden v. Georgia, struck down the automatic
revocation of
parole for nonpayment of criminal justice debt.72 Bearden
established
a “bona fide efforts” test that asks how seriously one has tried
to secure
employment and credit, in addition to measuring assets.73 The
Bearden line of cases thus endeavors to shield criminal justice
debtors
making a good faith effort to pay, while leaving willful
nonpayment
unprotected.74
The second line of cases limits states’ ability to treat civil
debtors
differently based on the procedural origins of their debt. The
Court
identified some of those limits in a pair of equal protection
cases in the
1970s: James v. Strange75 and Fuller v. Oregon.76
The debtor in James v. Strange owed $500 to pay for a court-
appointed attorney and challenged the Kansas recoupment
statute un-
der which the state had attempted to recover the money.77 The
Court
struck down the recoupment statute because it failed to provide
“any
of the exemptions provided by [the Kansas Code of Civil Proce-
dure] . . . except the homestead exemption.”78 Avoiding broad
com-
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
67 399 U.S. 235 (1970).

68 Id. at 236–37, 240–41.
69 401 U.S. 395 (1971).
70 Id. at 397–98.
71 See id. at 398–99; Williams, 399 U.S. at 242.
72 Bearden v. Georgia, 461 U.S. 660, 668–69 (1983).
73 See id. at 668.
74 See Tate, 401 U.S. at 400; Williams, 399 U.S. at 242 n.19.
75 407 U.S. 128 (1972).
76 417 U.S. 40 (1974).
77 James, 407 U.S. at 129.
78 Id. at 131. In this context, exemptions laws are provisions
that exempt a certain amount of
personal property from attachment and garnishment. See id. at
135.
mentary on the general validity of various state recoupment
statutes,79
the Court nonetheless expressed concern with the classification
drawn
by Kansas’s recoupment statute, which “strip[ped] from
indigent de-
fendants the array of protective exemptions Kansas ha[d]
erected for
other civil judgment debtors,”80 including state exemptions
from at-
tachment and restrictions on wage garnishment.81 While a state
could
prioritize its claim to money over other creditors (say, by giving
its
liens priority), “[t]his does not mean . . . that a State may
impose undu-

ly harsh or discriminatory terms merely because the obligation
is to the
public treasury rather than to a private creditor.”82 The Court
sug-
gested that it was applying rational basis scrutiny, although in
light of
the Court’s strong language some judges have read James as
subject-
ing the classification to some form of heightened scrutiny.83
Similarly, the debtor in Fuller v. Oregon owed fees for an
attorney
and an investigator.84 But in Fuller, the Court upheld Oregon’s
re-
coupment statute because the defendant wouldn’t be forced to
pay un-
less he was able.85 The majority found that the recoupment
statute
provided all of the same protections as those provided to other
judg-
ment debtors, and was therefore “wholly free of the kind of
discrimina-
tion that was held in James v. Strange to violate the Equal
Protection
Clause.”86 Justice Marshall, joined by Justice Brennan in
dissent, cited
the Oregon constitutional ban on imprisonment for debt and
pointed
out that indigent defendants could be imprisoned for failing to
pay
their court-appointed lawyers, while “well-heeled defendants”
who had
stiffed their hired counsel could not.87 The majority opinion
pointed
out that this issue hadn’t been preserved for appeal,88 and
opined in

dicta that the state ban on imprisonment for debt was an issue
for
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
79 See id. at 132–33 (“The statutes vary widely in their terms.”
Id. at 132. “[A]ny broadside
pronouncement on their general validity would be
inappropriate.” Id. at 133.).
80 Id. at 135 (emphasis added).
81 Id. at 135–36.
82 Id. at 138. The Court also likened the classification to the
“invidious discrimination” of
Rinaldi v. Yeager, 384 U.S. 305 (1966). James, 407 U.S. at 140
(quoting Rinaldi, 384 U.S. at 309).
83 See Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 320 (1976)
(Marshall, J., dissenting); San An-
tonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 105–06 (1973)
(Marshall, J., dissenting); Johnson
v. Bredesen, 624 F.3d 742, 749 (6th Cir. 2010).
84 Fuller v. Oregon, 417 U.S. 40, 42 (1974).
85 See id. at 45–46. The statute seems to have provided for a
Bearden-like inquiry: “[N]o con-
victed person may be held in contempt for failure to repay if he
shows that ‘his default was not
attributable to an intentional refusal to obey the order of the
court or to a failure on his part to
make a good faith effort to make the payment . . . .’” Id. at 46
(quoting OR. REV. STAT.
§ 161.685(2) (1973) (omission in original)).
86 Id. at 48; see also id. at 47–48.
87 Id. at 61 (Marshall, J., dissenting); see also id. at 60–61.
88 See id. at 48 n.9 (majority opinion). Justice Douglas agreed
the issue wasn’t properly in
front of the Court. See id. at 57 (Douglas, J., concurring in the
judgment).

state courts to decide.89 Justice Douglas, concurring in the
judgment,
agreed, but noted the “apparent inconsistency between [the
relevant
state constitutional provision] and the recoupment statute.”90
Thus, under James and Fuller, states cannot discriminate invidi-
ously against at least some classes of criminal justice debtors
(note that
neither case involved fines) merely by virtue of the fact that the
debts
arise from a criminal proceeding.
The federal protections under the Bearden and James lines of
cases
are important tools for ensuring our criminal justice system
doesn’t
imprison for poverty. But, as argued below, the state bans on
debtors’
prisons can supplement Bearden — and they may well be
relevant to
the inquiry under James.
III. STATE CONSTITUTIONAL LIMITATIONS
As noted above, the state bans on debtors’ prisons have been
given
short shrift in the legal literature and recent litigation.91 This
Part be-
gins by providing a brief historical overview of the state bans92

and
then argues that ignoring them is a legal mistake: these
imprisonment-
for-debt provisions plausibly extend to some parts of
contemporary
debtors’ prisons.
A. The “Abolition” of Debtors’ Prisons
The problems posed by nineteenth-century debtors’ prisons in
the
United States differ in many ways from the challenges posed
today by
criminal justice debt. Most importantly for present purposes,
the debts
at issue historically were contractual, not criminal.
Imprisonment for
nonpayment of contractual debt was a normal feature of
American
commercial life from the colonial era into the beginning of the
nine-
teenth century.93 But with the rise of credit testing and the
replace-
ment of personal lending networks with secured credit,
imprisonment
for nonpayment came to be seen as a harsh and unwieldy
sanction,94
and a growing movement pressed for its abolition.
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
89 See id. at 48 n.9 (majority opinion).
90 Id. at 58 (Douglas, J., concurring in the judgment); see also
id. (“It may be . . . that the Ore-
gon courts would strike down the statute as being inconsistent
with the constitutional provision if

they faced the issue.”).
91 But cf. Complaint, Fant v. Ferguson, supra note 48, at 53
(arguing governments may not
“take advantage of their position to impose unduly harsh
methods of collection”); Complaint, Jen-
kins v. Jennings, supra note 24, at 58–59 (same).
92 A more complete history would undoubtedly be helpful, but
remains outside the scope of
this Note.
93 See PETER J. COLEMAN, DEBTORS AND CREDITORS
IN AMERICA 249–56 (1974).
94 See id. at 260–65; Becky A. Vogt, State v. Allison:
Imprisonment for Debt in South Dakota,
46 S.D. L. REV. 334, 345–46 (2001).
Eventually, the movement against imprisonment for debt would
produce forty-one state constitutional provisions.95 Some of
the provi-
sions read as flat bans;96 others have various carve-outs and
exceptions
in the text.97 But subsequent case law narrows the practical
differ-
ences among them by reading into the flat bans largely the same
carve-outs.98 The nine states that haven’t constitutionalized a
ban on
imprisonment for debt — Connecticut, Delaware, Louisiana,
Maine,
Massachusetts, New Hampshire, New York, Virginia, and West
Virgin-
ia — all have taken statutory action.99 Some statutes look on
the sur-

face a lot like the constitutional bans.100 Practically, some
explicitly
abolished the old writ of capias ad satisfaciendum (holding the
body of
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
95 The constitutional imprisonment-for-debt provisions are as
follows: ALA. CONST. art. I,
§ 20; ALASKA CONST. art. I, § 17; ARIZ. CONST. art. II, §
18; ARK. CONST. art. II, § 16; CAL.
CONST. art. I, § 10; COLO. CONST. art. II, § 12; FLA.
CONST. art. 1, § 11; GA. CONST. art. I, § 1,
¶ XXIII; HAW. CONST. art. I, § 19; IDAHO CONST. art. I, §
15; ILL. CONST. art. I, § 14; IND.
CONST. art. I, § 22; IOWA CONST. art. I, § 19; KAN. CONST.
Bill of Rights, § 16; KY. CONST.
§ 18; MD. CONST. art. III, § 38; MICH. CONST. art. I, § 21;
MINN. CONST. art. I, § 12; MISS.
CONST. art. III, § 30; MO. CONST. art. I, § 11; MONT.
CONST. art. II, § 27; NEB. CONST. art. I,
§ 20; NEV. CONST. art. I, § 14; N.J. CONST. art. I, ¶ 13; N.M.
CONST. art. II, § 21; N.C. CONST.
art. I, § 28; N.D. CONST. art. I, § 15; OHIO CONST. art. I, §
15; OKLA. CONST. art. II, § 13; OR.
CONST. art. I, § 19; PA. CONST. art. I, § 16; R.I. CONST. art.
I, § 11; S.C. CONST. art. I, § 19;
S.D. CONST. art. VI, § 15; TENN. CONST. art. I, § 18; TEX.
CONST. art. I, § 18; UTAH CONST.
art. I, § 16; VT. CONST. ch. II, § 40(3), para. 4; WASH.
CONST. art. I, § 17; WIS. CONST. art. I,
§ 16; WYO. CONST. art. I, § 5. Laying the provisions out in
one place seems necessary, as the
stringcites available in the legal literature are now outdated.
See Vogt, supra note 94, at 335 n.9;
Note, Body Attachment and Body Execution: Forgotten but Not

Gone, 17 WM. & MARY L. REV.
543, 550 n.45 (1976); Note, Imprisonment for Debt: In the
Military Tradition, 80 YALE L.J. 1679,
1679 n.1 (1971). An Appendix to this Note, available on the
Harvard Law Review Forum, pro-
vides the critical language of each of the forty-one state
constitutional bans. See Appendix, State
Bans on Debtors’ Prisons and Criminal Justice Debt, 129
HARV. L. REV. F. 153 (2015), http://
harvardlawreview.org/2015/11/state-bans-on-debtors-prisons-
and-criminal-justice-debt-appendix.
96 See, e.g., ALA. CONST. art. I, § 20 (“That no person shall
be imprisoned for debt.”); GA.
CONST. art. I, § 1, ¶ XXIII (“There shall be no imprisonment
for debt.”); TEX. CONST. art. I,
§ 18 (“No person shall ever be imprisoned for debt.” (emphasis
added)).
97 See, e.g., COLO. CONST. art. II, § 12 (“No person shall be
imprisoned for debt, unless upon
refusal to deliver up his estate for the benefit of his creditors in
such manner as shall be pre-
scribed by law, or in cases of tort or where there is a strong
presumption of fraud.”); MD. CONST.
art. III, § 38 (“[A] valid decree of a court . . . for the support of
a spouse or dependent children, or
for the support of an illegitimate child or children, or for
alimony . . . , shall not constitute a debt
within the meaning of this section.”).
98 See infra notes 103–15 and accompanying text.
99 See Armstrong v. Ayres, 19 Conn. 540, 546 (1849); Johnson
v. Temple, 4 Del. (4 Harr.) 446,
447 (1846); State v. McCarroll, 70 So. 448, 448 (La. 1915);
Gooch v. Stephenson, 15 Me. 129, 130
(1838); Appleton v. Hopkins, 71 Mass. (5 Gray) 530, 532
(1855); Eams v. Stevens, 26 N.H. 117, 120
(1852); Whitney v. Johnson, 12 Wend. 359, 360 (N.Y. Sup. Ct.

1834); Werdenbaugh v. Reid, 20 W.
Va. 588, 593, 598 (1882) (discussing Virginia and West
Virginia).
100 For example, in 1855, Massachusetts passed a statute
saying: “Imprisonment for debt is
hereby forever abolished in Massachusetts.” Appleton, 71
Mass. (5 Gray) at 532.
the debtor in satisfaction of the debt),101 and others
reinvigorated pro-
cedural protections for debtors who genuinely couldn’t pay.102
Of course, these bans don’t straightforwardly apply to criminal
jus-
tice debt. As the literature has long recognized, the “abolition”
of
debtors’ prisons was tightly constrained in scope.103 The
doctrinal
limits on the bans’ coverage cabined them along two
dimensions: First,
debtors evading payment were sculpted out from the bans. For
in-
stance, a number of constitutional provisions contained (or had
read
in) an exception for fraud.104 The fraud exception has been
interpret-
ed to cover cases of concealed assets or fraudulent
contracting.105 In
some cases, even leaving the state would count as fraud.106
And if a
court ordered a party to turn over specific assets, that party’s

refusal
to comply would give rise to the jailable offense of civil
contempt of
court without offending the constitutional bans.107 Second,
courts
have held a long list of monetary obligations not to count as
“debts.”
Some constitutional provisions limited the ban to debts arising
out of
contract, as opposed to tort or crime.108 In these places,
failure to pay
child support or alimony could give rise to arrest and
incarceration.109
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
101 The 1849 Virginia statute took this approach, which was
carried over into West Virginia
when that state broke away from Virginia. See Werdenbaugh,
20 W. Va. at 593, 598.
102 Despite its strong language, the Massachusetts statute
functioned this way: the indigent
debtor was required to appear in court before receiving a
discharge. See Thacher v. Williams, 80
Mass. (14 Gray) 324, 328 (1859).
103 For example, one author, writing in 1889, pointed out a
number of ways in which the state
bans were limited. See J.C. Thomson, Imprisonment for Debt in
the United States, 1 JURID.
REV. 357 (1889). Over one hundred years later, another author
identified the same carve-outs and
concluded there’s a de facto debtors’ prison system in the
United States. See Richard E. James,
Putting Fear Back into the Law and Debtors Back into Prison:
Reforming the Debtors’ Prison
System, 42 WASHBURN L.J. 143, 149–54 (2002) (discussing

civil contempt); id. at 155–56 (discuss-
ing child support payments); id. at 156–57 (discussing taxes).
104 For constitutional provisions, see, for example, ARIZ.
CONST. art. II, § 18 (“There shall be
no imprisonment for debt, except in cases of fraud.”). For case
law, see, for example, Towsend v.
State, 52 S.E. 293, 294 (Ga. 1905) (“[I]n enacting the statute
now under consideration, the
[l]egislative purpose was not to punish . . . a failure to pay a
debt, but . . . the act of securing the
money or property of another with a fraudulent intent . . . .”
(quoting Lamar v. State, 47 S.E. 958,
958 (Ga. 1904))); and Appleton, 71 Mass. (5 Gray) at 533
(noting that a major purpose of the stat-
ute was “to punish fraudulent debtors”).
105 See Note, Civil Arrest of Fraudulent Debtors: Toward
Limiting the Capias Process, 26
RUTGERS L. REV. 853, 855 (1973).
106 See id.
107 See, e.g., Samel v. Dodd, 142 F. 68, 70 (5th Cir. 1906);
Boarman v. Boarman, 556 S.E.2d 800,
804–06 (W. Va. 2001); State v. Burrows, 5 P. 449, 449 (Kan.
1885); see also Thomson, supra note
103, at 364 (“[T]he imprisonment is for the contempt and not
for the debt.” (quoting State v.
Becht, 23 Minn. 411, 413 (1877))).
108 See, e.g., MICH. CONST. art. I, § 21 (“No person shall be
imprisoned for debt arising out of
or founded on contract, express or implied, except in cases of
fraud or breach of trust.”); In re
Sanborn, 52 F. 583, 584 (N.D. Cal. 1892).
109 See Thomson, supra note 103, at 366.

So too with criminal costs and fines.110 Thus, in most states
today one
can be imprisoned for failure to pay noncommercial debts,
including
debts stemming from tort,111 crime,112 taxes and licensing
fees,113 child
support,114 and alimony.115
Many kinds of monetary obligations, then, have been held to
fall
outside the scope of the state bans. But once a monetary
obligation
qualifies as a “debt,” states have implemented the bans’
protections in
one of two ways: First, some states have held that their bans on
im-
prisonment for debt remove the courts’ ability to issue contempt
orders
for nonpayment of qualifying debts.116 This is the “no-hearing
rule.”
The judgment creditor may pursue execution proceedings,
attempting
to attach nonexempt property, say, or garnish wages. But the
court
will not issue a civil contempt order to coerce the debtor into
paying.
Second, even in states that allow contempt proceedings, most
courts
require a sharply limited (and debtor-favorable) inquiry. Courts
em-
phasize that the contempt lies in failing to comply with an
injunction
to turn over specific property that is currently under the
debtor’s con-

trol.117 And that specific property must also be nonexempt
under the
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
110 See id. at 367. Courts, however, did make clear that the
legislature couldn’t criminalize the
mere nonpayment of commercial debt as a constitutional
workaround. See, e.g., Bullen v. State,
518 So. 2d 227, 233 (Ala. Crim. App. 1987).
111 See, e.g., Davis v. State, 185 So. 774, 776 (Ala. 1938).
112 See, e.g., State ex rel. Lanz v. Dowling, 110 So. 522, 525
(Fla. 1926); Plapinger v. State, 120
S.E.2d 609, 611 (Ga. 1961); Boyer v. Kinnick, 57 N.W. 691,
691 (Iowa 1894). It’s interesting to
note that the Illinois state constitution specifically includes
criminal fines. See ILL. CONST. art. I,
§ 14 (“No person shall be imprisoned for failure to pay a fine in
a criminal case unless he has been
afforded adequate time to make payment, in installments if
necessary, and has willfully failed to
make payment.”).
113 See, e.g., City of Fort Madison v. Bergthold, 93 N.W.2d
112, 116 (Iowa 1958); Voelkel v.
City of Cincinnati, 147 N.E. 754, 756–57 (Ohio 1925).
114 See, e.g., State v. Hopp, 190 N.W.2d 836, 837 (Iowa
1971); In re Wheeler, 8 P. 276, 277–78
(Kan. 1885).
115 See, e.g., State ex rel. Krueger v. Stone, 188 So. 575, 576
(Fla. 1939); Roach v. Oliver, 244
N.W. 899, 902 (Iowa 1932).
116 E.g., In re Nichols, 749 So. 2d 68, 72 (Miss. 1999) (“The
[creditors] are free to collect the
judgment by execution, garnishment, or any other available
lawful means so long as it does not
include imprisonment.”).

117 See, e.g., Harrison v. Harrison, 394 S.W.2d 128, 130–31
(Ark. 1965). In Lepak v. McClain,
844 P.2d 852 (Okla. 1992), the Oklahoma Supreme Court
sustained the contempt-of-court power
when used “to require the delivery of . . . identified property
owned by and in the possession or
control of the judgment debtor . . . if the judgment debtor
unjustly refuses to apply the identified
property towards the satisfaction of a judgment”; however, the
court struck it down under the ban
on imprisonment for debt when contempt was used “to require
the judgment debtor to set aside
and deliver a portion of his/her future income toward the
satisfaction of the judgment debt.” Id.
at 855. At an initial pass, states with cases affirming this rule
include the following: Utah, see In
re Clift’s Estate, 159 P.2d 872, 876 (Utah 1945), Missouri, see
State ex rel. Stanhope v. Pratt, 533
S.W.2d 567, 574–75 (Mo. 1976) (en banc); Zeitinger v.
Mitchell, 244 S.W.2d 91, 97–98 (Mo. 1951)
(citing In re Clift’s Estate, 159 P.2d at 876), and Oklahoma, see
Sommer v. Sommer, 947 P.2d 512,
519 (Okla. 1997); Lepak, 844 P.2d at 855.
state’s exemption laws.118 An injunction as a general rule is a
“drastic
and extraordinary remedy.”119 Accordingly, some states
require that
creditors attempt execution through in rem actions before
resorting to
in personam actions.120 Herein lies the attractiveness of the

state bans
to the civil debtor — the protections offered to a qualifying
debtor, as
a general rule, far exceed those offered to the criminal debtor.
B. New Applications of the Bans
The doctrinal carve-outs for crime suggest that the state bans
wouldn’t apply to criminal justice debt. Nevertheless, three
specific
kinds of criminal monetary obligations might actually be
covered by
the bans: fines for regulatory offenses, costs, and definitionally
civil
debts. This section advances arguments from text, purpose, and
origi-
nal meaning, which in many cases converge on this result.
First, infractions known as “regulatory offenses,” also known as
“public welfare offenses.” The most relevant example is traffic
viola-
tions, which have played a major role in Ferguson and
elsewhere.
How to define the category? Although at common law, scienter
re-
quirements were generally necessary to a criminal charge (hence
the
regular practice of courts reading them into statutes),121 the
develop-
ment of criminal law for regulatory purposes during
industrialization
made it increasingly desirable to impose strict liability in a
number of
situations. But some strict liability crimes, like statutory rape,
are
more easily analogized to traditional crimes despite the absence

of a
mens rea. A “regulatory offense” might be better defined, then,
as a
strict liability offense where the statute authorizes only a
reasonable
fine (and not a more penal-minded sanction, such as
imprisonment).122
In some states, offenses meeting this latter definition aren’t
even de-
fined as “crimes.”123 An altogether different type of definition
would
look instead to the historical origin of the offense.124
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
118 See, e.g., Shepard, supra note 6, at 1531–32.
119 Monsanto Co. v. Geertson Seed Farms, 130 S. Ct. 2743,
2761 (2010).
120 See Shepard, supra note 6, at 1529–30 (describing the
rule’s origin in the common law pre-
cept that creditors must exhaust legal remedies before turning to
equitable ones).
121 See, e.g., United States v. Balint, 258 U.S. 250, 251–52
(1922) (“[T]he general rule at com-
mon law was that the scienter was a necessary element in the
indictment and proof of every
crime . . . .”); see also Jerome Hall, Interrelations of Criminal
Law and Torts: I, 43 COLUM. L.
REV. 753, 767 (1943) (citing as generally accepted the maxim
that an act does not make one guilty
unless the mind is guilty).
122 For a similar analysis, see State v. Anton, 463 A.2d 703,
706–07 (Me. 1983).
123 See, e.g., FLA. STAT. § 775.08(3) (2015); MO. REV.
STAT. § 556.016 (2000), repealed and re-
placed by Act effective Jan. 1, 2017, 2014 Mo. Laws 941, 1152

(to be codified at Mo. Rev. Stat.
§ 556.061(29)) (defining “infraction”).
124 Indeed, when trying to determine whether or not to read a
scienter requirement into a stat-
ute, courts are guided by principles like those laid out in
Morissette v. United States, 342 U.S. 246
(1952), looking to any required culpable mental state, the
purpose of the statute, its connection to
Interpreting fines for regulatory offenses to fall under the bans
of
many states is consistent with the bans’ text, purpose, and
original
meaning. Starting with the text, twenty-two state bans refer to
“debt”
or “debtor” without drawing further distinctions between
different
kinds of debts,125 and there’s no textual reason why such words
should
exclude monetary obligations triggered by statutorily regulated
con-
duct and owed to the state.126 Indeed, the presence of such
qualifying
language in the other bans127 strongly suggests that the words
“debt”
and “debtor” weren’t inherently limited to commercial life as a
matter
of the original meaning of the text — just as they aren’t today.

But the carve-outs for crime? To be fair, provisions limiting
the
ban to debts arising out of contract (four states)128 or stemming
from
civil cases (seven states)129 would seem to leave regulatory
offenses un-
covered. But other carve-outs for crime130 aren’t so clean-cut,
as their
purpose likely had nothing to do with regulatory offenses. To
the con-
trary, regulatory offenses became prominent within American
criminal
law only after the abolition of debtors’ prisons.131 The Court
in
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
common law, whether or not it is regulatory in nature, whether
it would be difficult to enforce
with a scienter requirement, and whether the sanction is severe.
See, e.g., Ex parte Phillips, 771
So. 2d 1066 (Ala. 2000) (applying Morissette’s framework).
125 This includes the state constitutional bans of Alabama,
Alaska, Arizona, Florida, Georgia,
Hawaii, Idaho, Indiana, Kansas, Kentucky, Minnesota,
Mississippi, North Carolina, Oregon,
Pennsylvania, Rhode Island, South Carolina, Texas, Utah,
Vermont, Washington, and Wyoming.
See sources cited supra note 95.
126 See, e.g., Debt, BLACK’S LAW DICTIONARY (10th ed.
2014) (“Liability on a claim; a specif-
ic sum of money due by agreement or otherwise . . . .”).
Indeed, in People ex rel. Daley v.
Datacom Systems Corp., 585 N.E.2d 51 (Ill. 1991), the Supreme
Court of Illinois held that munici-
pal fines counted as “debts” for the purposes of the Collection

Agency Act. Id. at 60.
127 E.g., S.D. CONST. art. VI, § 15 (“No person shall be
imprisoned for debt arising out of or
founded upon a contract.”).
128 This carve-out can be found in the state bans of Michigan,
New Jersey, South Dakota, and
Wisconsin. See sources cited supra note 95; see also, e.g.,
MICH. CONST. art. I, § 21 (“No person
shall be imprisoned for debt arising out of or founded on
contract, express or implied . . . .”).
129 To be found in the state bans of Arkansas, California,
Iowa, Nebraska, New Mexico, Ohio,
and Tennessee. See sources cited supra note 95.
130 This category would include constitutional provisions with
an express carve-out for crime,
e.g., OKLA. CONST. art. II, § 13 (exempting “fines and
penalties imposed for the violation of
law”), and states where case law has specifically mentioned
“crime,” e.g., Plapinger v. State, 120
S.E.2d 609, 611 (Ga. 1961).
131 See generally Francis Bowes Sayre, Public Welfare
Offenses, 33 COLUM. L. REV. 55, 62–67
(1933) (tracing the development of public welfare offenses in
the United States). Professor Jerome
Hall, writing in 1941, said: “[The act requirement] and the mens
rea principle constituted the two
most basic doctrines of [Bishop’s] treatise on criminal law.
They are still generally accepted as
such in this country.” Jerome Hall, Prolegomena to a Science
of Criminal Law, 89 U. PA. L. REV.
549, 557–58 (1941). Yet Hall was critiquing a blind adherence
to mens rea as a ubiquitous doc-
trine in criminal law. See id. at 558 (arguing that mens rea, like
the act requirement, becomes
“little more than a point of orientation . . . once we encounter
involuntary manslaughter, other

crimes of negligence, and various statutory offenses”).
Morissette v. United States132 identified the “pilot of the
[regulatory
offenses] movement” in such crimes as “selling liquor to an
habitual
drunkard” and “selling adulterated milk,” citing cases from
1849,133
1864,134 and 1865.135 A law review article published in 1933
called the
“steadily growing stream of offenses punishable without any
criminal
intent whatsoever” a “recent movement” in criminal law,136
placing the
beginnings of the trend in the middle of the nineteenth
century.137 By
comparison, all but a few states had enacted their bans on
debtors’
prisons by the 1850s.138 So reading the carve-outs as unrelated
to reg-
ulatory crimes is consistent with both text and original meaning.
The
abolition movement certainly did not intend to exclude such
debts
from the ban; whether legislatures meant to include them
depends up-
on how sparing one’s assumptions about past intent are.
Many state courts could therefore plausibly hold today that
fines
for regulatory offenses constitute civil “debt” under their state

constitu-
tional bans. While such holdings might raise a stare decisis
issue in
many instances, the risk of deprivations of liberty is high, and
the
world of criminal justice has changed so dramatically,139 that
revisiting
precedent might be jurisprudentially sound. As the Ohio
Supreme
Court put it: “In today’s society, no one, in good conscience,
can con-
tend that a nine-dollar fine for crashing a stop sign is deserving
of
three days in jail if one is unable to pay.”140
Second, costs. Despite arising out of a criminal proceeding,
costs
are cleanly distinguishable from fines, restitution, and forfeiture
in
their basic purpose: compensating for or subsidizing the
government’s
marginal expenditures on criminal proceedings. But of course,
funding
the government is not one of the traditional purposes of penal
law.
Because the purpose of costs is not purely or event mostly to
pun-
ish, they are arguably debts within the text of the state bans. As
one
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
132 342 U.S. 246 (1952).
133 Id. at 256 (citing Barnes v. State, 19 Conn. 398 (1849)).
134 Id. (citing Commonwealth v. Farren, 91 Mass. (9 Allen)
489 (1864)).

135 Id. (citing Commonwealth v. Nichols, 92 Mass. (10 Allen)
199 (1865); Commonwealth v.
Waite, 93 Mass. (11 Allen) 264 (1865)).
136 Sayre, supra note 131, at 55.
137 Id. at 56; see also William J. Stuntz, The Pathological
Politics of Criminal Law, 100 MICH.
L. REV. 505, 513–14 (2001) (describing the massive growth in
statutory offenses in several states
from the second half of the nineteenth century until the early
twenty-first century); cf. Myers v.
State, 1 Conn. 502 (1816) (holding that a defendant who rented
his carriage on Sunday, a crime
punishable by a fine of twenty dollars, couldn’t be found guilty
without a showing of mens rea).
The late Professor William J. Stuntz also noted that regulatory
crimes and “core crimes” like mur-
der “have dramatically different histories.” Stuntz, supra, at
512.
138 See CHARLES WARREN, BANKRUPTCY IN UNITED
STATES HISTORY 52 (1935).
139 Cf., e.g., Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401,
2410–11 (2015) (identifying the
“ero[sion]” of “statutory and doctrinal underpinnings,” id. at
2410, as a principal justification for
overruling precedent in federal stare decisis doctrine).
140 Strattman v. Studt, 253 N.E.2d 749, 753 (Ohio 1969).
might guess, the states have split on whether costs fall within
the scope
of the bans. The majority rule, often tersely stated, is that they
don’t.141 But at least one court has held otherwise. In

Strattman v.
Studt,142 the defendant was sentenced to the statutory
maximum of six
months, a fine of $500, and costs.143 After having served his
time, and
when he couldn’t pay his debt, he was imprisoned to sit out his
debt at
$3 per day.144 The Ohio Supreme Court held that costs are
imposed
“for the purpose of lightening the burden on taxpayers financing
the
court system,” not for a “punitive, retributive, or rehabilitative
pur-
pose, as are fines.”145 Observing that costs arose out of an
“implied
contract” with the court, Strattman held that “[a] judgment for
costs in
a criminal case is a civil, not a criminal, obligation, and may be
col-
lected only by the methods provided for the collection of civil
judg-
ments.”146 Future state supreme courts confronting the issue
should
embrace Strattman’s logic and ban cost-related imprisonment.
Indeed, federal constitutional law may compel an answer on this
point. Costs trigger the precedents, discussed above, of James
and
Fuller.147 Many state bans on imprisonment for debt provide
equally
(or more) unequivocal protections to the civil debtor than the
exemp-
tion statutes in James did; a strong logic therefore suggests that
the
Court could more widely enforce James’s prohibition on jailing
de-

fendants for failing to pay court costs. Additionally,
interpreting the
James and Fuller Courts as applying some degree of heightened
scruti-
ny,148 the disparate application of the imprisonment-for-debt
bans is an
even better indicator of “invidious discrimination”149 than the
dispar-
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
141 See, e.g., Lee v. State, 75 Ala. 29, 30 (1883); Mosley v.
Mayor of Gallatin, 78 Tenn. 494, 497
(1882).
142 253 N.E.2d 749.
143 Id. at 750.
144 Id. at 750–51.
145 Id. at 754.
146 Id. In fact, the recent bench card promulgated by Ohio
Supreme Court Chief Justice
O’Connor begins as follows: “Fines are separate from court
costs. Court costs and fees are civil,
not criminal, obligations and may be collected only by the
methods provided for the collection of
civil judgments.” OFFICE OF JUDICIAL SERVS., supra note
57 (citing Strattman, 253 N.E.2d at
754).
147 See supra notes 75–90 and accompanying text.
148 This possibility is made more credible by Justice
O’Connor’s note in the related case of
Bearden v. Georgia that “[d]ue process and equal protection
principles converge in the Court’s
analysis in these cases.” 461 U.S. 660, 665 (1983). Of course,
while the disparity between how
indigent and “well-heeled” defendants are treated, see supra
note 87 and accompanying text, is

arguably not right, it seems reasonable enough to pass rational
basis scrutiny, see, e.g., FCC v.
Beach Commc’ns, Inc., 508 U.S. 307, 314–15 (1993); U.S. R.R.
Ret. Bd. v. Fritz, 449 U.S. 166, 179
(1980). For example, a state could plausibly maintain that
imprisonment for nonpayment of costs
attendant to crime helps to deter criminal behavior, such that
abolishing such imprisonment for
civil debts, while maintaining it for criminal debts, is
reasonable.
149 James v. Strange, 407 U.S. 128, 140 (1972) (quoting
Rinaldi v. Yeager, 384 U.S. 305, 309
(1966)).
ate applications of the Kansas and Oregon exemption statutes.
De-
spite the Court’s reluctance to rule on an issue not properly
briefed,
federal courts might return to the issue and confirm that states
must
apply their bans on imprisonment for debt to costs (and other
quasi-
civil debts) in a criminal case.150 In fact, the lawsuits against
Ferguson
and Jennings hinted at this argument,151 although neither
complaint
cited the Missouri Constitution. When dealing with costs, the
states
may adopt the reasoning of Strattman in their interpretations of
state
law, or the Fourteenth Amendment, under James and Fuller,

may itself
demand that reasoning.
Finally, violations of monetary obligations that are statutorily
de-
fined as civil. For both regulatory offenses and costs, a
reviewing
court must assess and characterize the debt as civil or quasi-
civil for
the purposes of coverage under the state ban. But sometimes,
the rel-
evant statute explicitly tags the criminal justice debt as civil or
as re-
ceiving civil protections.152
For example, in some jurisdictions, courts have held that
violations
of municipal ordinances constitute civil actions.153 In Kansas
City v.
Stricklin,154 for example, the Supreme Court of Missouri noted
that
these proceedings “are not prosecutions for crime in a
constitutional
sense.”155 Case law in a number of states supports this
approach,156
although a fifty-state survey cannot be conducted here. As
much of
the furor regarding contemporary debtors’ prisons revolves
around
municipalities, this is no minor point. Similarly, some
collections stat-
utes explicitly redefine certain debts as civil for the purposes of
collec-
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––

150 It may also be worth pointing out that James and Fuller
dealt most concretely with attor-
neys’ fees. There’s probably no principled reason to distinguish
between attorneys’ fees and other
costs, like a judgment fee or a clerk fee, but doctrinally the
Court may have felt especially sensi-
tive to discrimination with respect to assigning lawyers, given
its recent decision mandating coun-
sel for indigent defendants in Gideon v. Wainwright, 372 U.S.
335 (1963).
151 See Complaint, Fant v. Ferguson, supra note 48;
Complaint, Jenkins v. Jennings, supra note
24.
152 The possibility that all violations of municipal ordinances
(in some states) might fall under
the bans is made more morally salient by the fact that many
courts treat such violations as civil
for the purposes of setting (lowered) procedural protections for
defendants. See, e.g., State v. An-
ton, 463 A.2d 703, 705 (Me. 1983); Kansas City v. Stricklin,
428 S.W.2d 721, 725–26 (Mo. 1968) (en
banc).
153 Naturally, there may be some overlap between this
category and the two mentioned above.
For example, violations of municipal ordinances boil down to
the “regulatory crimes” category in
states where municipalities are not empowered to imprison.
Take Wisconsin, where the munici-
pal inability to create crimes prohibits them from punishing
infractions by either fine or impris-
onment. See State v. Thierfelder, 495 N.W.2d 669, 673 (Wis.
1993); see also WIS. STAT. § 939.12
(2014) (defining “crime”).
154 428 S.W.2d 721.
155 Id. at 724.
156 See, e.g., City of Danville v. Hartshorn, 292 N.E.2d 382,

384 (Ill. 1973) (describing violations
of municipal ordinances as “quasi-criminal in character [but]
civil in form” (quoting City of Deca-
tur v. Chasteen, 166 N.E.2d 29, 39 (Ill. 1960))).
tion. The debt in James had this characteristic, as the
underlying stat-
ute specified that the “total amount . . . shall become a
judgment in
the same manner and to the same extent as any other judgment
under
the code of civil procedure.”157 In Florida, convicted indigents
as-
sessed costs for due process services are expressly provided
with the
same protections as civil-judgment debtors.158 But not all
collections
statutes are so explicit, of course.159
IV. THE ADDED VALUE OF THE STATE LAW APPROACH
If courts begin to recognize claims under the state bans on
debtors’
prisons, imprisonment for some criminal debts would become
subject
to both federal and state restrictions. This Part lays out how the
state
law protections would differ from the federal protections, and
why
having multiple levels of protection makes sense.

To start, state debtor protections would not merely duplicate the
federal ones. In fact, under the state law protections, criminal
justice
debtors would face a much friendlier inquiry than they would
under
Bearden’s freestanding equal protection jurisprudence.160 This
is true
under either of the two rules detailed above. Instead of a test
that
asks whether the debtor has sought employment or credit per
Bearden,
in some states there would be a limited inquiry into whether the
debt-
or possessed specific, nonexempt property that the debtor could
be or-
dered to turn over. And many debtors currently caught in the
cogs of
the criminal justice system would have no such property. In
other
states, the court simply could not imprison for failure to pay the
debt,
although it could pursue other execution remedies available at
law.
Why have two tests? Regulating criminal justice debt through
both Bearden claims and imprisonment-for-debt claims makes a
lot of
sense. On this understanding of the law, debtor protections co-
vary
quite straightforwardly with the state’s interest in collecting.
The baseline principle, of course, is that a court may consider a
de-
fendant’s financial resources to inform its decision whether to
impose
jail time, fines, or other sanctions.161 Without this discretion,

courts
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
157 James v. Strange, 407 U.S. 128, 130 n.3 (1972) (emphasis
added) (quoting KAN. STAT. ANN.
§ 22-4513(a) (Supp. 1971)).
158 See FLA. STAT. § 938.29(4) (2015) (specifying that such
debtors shall not “be denied any of
the protections afforded any other civil judgment debtor”).
159 Cf., e.g., MISS. CODE ANN. § 99-37-13 (West 2015)
(“[A] default . . . may be collected by any
means authorized . . . for the enforcement of a judgment.”);
MO. REV. STAT. § 560.031(5) (2000)
(“[T]he fine may be collected by any means authorized for the
enforcement of money judgments.”)
(to be transferred to MO. REV. STAT. § 558.006 by Act
effective Jan. 1, 2017, 2014 Mo. Laws 941).
160 While constitutional carve-outs for fraud will capture some
debtors, it can’t plausibly lower
the protections of the ban to the level of Bearden: the failure to
search for a job or to seek credit is
hardly fraudulent.
161 E.g., Bearden v. Georgia, 461 U.S. 660, 669–70 (1983).
might impose prison terms unnecessarily, to avoid the risk of
assessing
a fine on a judgment-proof defendant. And the Court has made
clear
this discretion is central to the core penal goals of deterrence,
incapaci-

tation, and retribution.162 Against that baseline, the tradition
of
Bearden simply mandates that once a sentencing court has
imposed a
monetary obligation, it may not convert that obligation into
imprison-
ment for failure to pay absent a special finding, a basic
threshold that
ensures the defendant isn’t invidiously punished for being poor.
Imprisonment-for-debt claims would impose a heightened
require-
ment on financial obligations that, unlike traditional fines and
restitu-
tion, really further noncriminal goals — despite being imposed
from
within the criminal system. Regulatory offenses are assessed to
deter
low-level misbehavior, and costs are assessed to replenish the
coffers
of the criminal justice system, or to fund the government.
Indeed,
costs function more as fees for service or taxes than as
punishments.
More problematically, these monetary obligations, unlike most
taxes,
are not indexed to wealth, income, or any other proxy for ability
to
pay. They therefore impose the burden of funding the
government
on those individuals and communities least equipped to bear the
weight. Conceptually, then, imprisonment-for-debt claims
would regu-
late the new debtors’ prisons along a fundamentally distinct
dimension
and should join Bearden claims as a way to challenge

unconstitutional
imprisonment.
Now, the imprisonment-for-debt claims wouldn’t challenge the
propriety of assessing such charges in the first place. The
proper tex-
tual and analytical hook for that question is the Excessive Fines
Clause.163 They would, however, challenge a state’s use of
collection
methods unavailable to civil creditors. Where a state has
chosen to
ban debtors’ prisons, it shouldn’t be able to welcome them back
in
surreptitiously, by grafting them onto the criminal system.164
* * *
So far, the vast majority of academic commentators, litigators,
leg-
islatures, and other legal actors have focused on the federal
protections
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
162 See id. at 672.
163 See Colgan, supra note 24.
164 A state, of course, could repeal its ban on debtors’ prisons,
but any attempt to do so would
create an unlikely coalition of criminal and civil debtors, and
the political-action costs of doing so
are likely too high. See generally Lee Anne Fennell & Richard
H. McAdams, The Distributive
Deficit in Law and Economics, MINN. L. REV. (forthcoming
2016), http://papers.ssrn.com/sol3
/papers.cfm?abstract_id=2544519 [http://perma.cc/9APA-
W5VQ]. Indeed, based upon the state-

by-state abolition of debtors’ prisons in the nineteenth century,
the bans highlight the self-
determination of states within the federalist structure. This
tiered regulatory model thus gives
each state the ability to pursue multiple legitimate ends —
including both punishment and subsi-
dizing the criminal justice system — so long as it doesn’t
discriminate in applying its own law.
extended under Bearden and its predecessors.165 Bearden
represents a
powerful tool for change, yet state law bans on debtors’ prisons
could
provide even greater protections for certain criminal justice
debtors
where the state’s interest in collecting isn’t penal. Bearden and
im-
prisonment-for-debt claims could operate side-by-side in a
manner
that’s both administrable and functionally appealing.
The new American debtors’ prisons seem problematic along
multi-
ple dimensions. But aside from clear policy concerns, they may
violate
constitutional laws at both the federal and state levels. Some of
these
laws — the state bans on debtors’ prisons — were enacted over
a
hundred years ago, but can and should be invoked today.166
The task

of operationalizing these bans for a new social evil rests in the
hands of
litigators and courts. But the spirit behind them ought to drive
other
constitutional actors — executives, legislators, and citizens —
to take
swift action.167
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
165 See supra p. 1028.
166 See William J. Brennan, Jr., State Constitutions and the
Protection of Individual Rights, 90
HARV. L. REV. 489, 491 (1977) (“State constitutions, too, are
a font of individual liberties, their
protections often extending beyond those required by the
Supreme Court’s interpretation of feder-
al law. The legal revolution which has brought federal law to
the fore must not be allowed to in-
hibit the independent protective force of state law — for
without it, the full realization of our lib-
erties cannot be guaranteed.”).
167 For an argument that awareness campaigns are more
effective than litigation, see Eric
Balaban, Shining a Light into Dark Corners: A Practitioner’s
Guide to Successful Advocacy to
Curb Debtor’s Prisons, 15 LOY. J. PUB. INT. L. 275 (2014).
153
APPENDIX
STATE BANS ON DEBTORS’ PRISONS

This Appendix identifies and locates the critical language of
each of
the forty-one current state constitutional bans on debtors’
prisons.
Readers should refer to the constitutions themselves for related
provi-
sions, such as exemptions to the types of property that may be
seized.
* * *
“That no person shall be imprisoned for debt.”
ALA. CONST. art. I, § 20.
“There shall be no imprisonment for debt. This section does not
pro-
hibit civil arrest of absconding debtors.”
ALASKA CONST. art. I, § 17.
“There shall be no imprisonment for debt, except in cases of
fraud.”
ARIZ. CONST. art. II, § 18.
“No person shall be imprisoned for debt in any civil action, on
mesne
or final process, unless in cases of fraud.”
ARK. CONST. art. II, § 16.
“. . . A person may not be imprisoned in a civil action for debt
or tort,
or in peacetime for a militia fine.”
CAL. CONST. art. I, § 10.

“No person shall be imprisoned for debt, unless upon refusal to
deliver
up his estate for the benefit of his creditors in such manner as
shall be
prescribed by law, or in cases of tort or where there is a strong
pre-
sumption of fraud.”
COLO. CONST. art. II, § 12.
“No person shall be imprisoned for debt, except in cases of
fraud.”
FLA. CONST. art. I, § 11.
“There shall be no imprisonment for debt.”
GA. CONST. art. I, § 1, ¶ XXIII.
–––––––––––––––––––––––––––––––––––––––––––––––––––––
––––––––
and Criminal Justice Debt,
129 HARV. L. REV. 1024 (2016).
154 HARVARD LAW REVIEW FORUM [Vol. 129:153
HAW. CONST. art. I, § 19.
“There shall be no imprisonment for debt in this state except in
cases
of fraud.”
IDAHO CONST. art. I, § 15.
“No person shall be imprisoned for debt unless he refuses to

deliver up
his estate for the benefit of his creditors as provided by law or
unless
there is a strong presumption of fraud. No person shall be
imprisoned
for failure to pay a fine in a criminal case unless he has been
afforded
adequate time to make payment, in installments if necessary,
and has
willfully failed to make payment.”
ILL. CONST. art. I, § 14.
“. . . [T]here shall be no imprisonment for debt, except in case
of
fraud.”
IND. CONST. art. I, § 22.
mesne
or final process, unless in case of fraud; and no person shall be
impris-
oned for a militia fine in time of peace.”
IOWA CONST. art. I, § 19.
fraud.”
KAN. CONST. Bill of Rights, § 16.
“The person of a debtor, where there is not strong presumption
of
fraud, shall not be continued in prison after delivering up his
estate for
the benefit of his creditors in such manner as shall be prescribed
by
law.”
KY. CONST. § 18.

“No person shall be imprisoned for debt, but a valid decree of a
court
of competent jurisdiction or agreement approved by decree of
said
court for the support of a spouse or dependent children, or for
the
support of an illegitimate child or children, or for alimony
(either
common law or as defined by statute), shall not constitute a
debt with-
in the meaning of this section.”
MD. CONST. art. III, § 38.
“No person shall be imprisoned for debt arising out of or
founded on
contract, express or implied, except in cases of fraud or breach
of
trust.”
MICH. CONST. art. I, § 21.
2016] APPENDIX: STATE BANS ON DEBTORS’ PRISONS
155
“No person shall be imprisoned for debt in this state, but this
shall not
prevent the legislature from providing for imprisonment, or
holding to
bail, persons charged with fraud in contracting said debt. . . .”
MINN. CONST. art. I, § 12.

MISS. CONST. art. III, § 30.
“That no person shall be imprisoned for debt, except for
nonpayment
of fines and penalties imposed by law.”
MO. CONST. art. I, § 11.
“No person shall be imprisoned for debt except in the manner
provid-
ed by law, upon refusal to deliver up his estate for the benefit of
his
creditors, or in cases of tort, where there is strong presumption
of
fraud.”
MONT. CONST. art. II, § 27.
“No person shall be imprisoned for debt in any civil action on
mesne
or final process.”
NEB. CONST. art. I, § 20.
“. . . [T]here shall be no imprisonment for debt, except in cases
of
fraud, libel, or slander, and no person shall be imprisioned
[impris-
oned] for a Militia fine in time of Peace.”
NEV. CONST. art. I, § 14 (second alteration in original).
“No person shall be imprisoned for debt in any action, or on any
judgment founded upon contract, unless in cases of fraud; nor
shall
any person be imprisoned for a militia fine in time of peace.”
N.J. CONST. art. I, ¶ 13.
“No person shall be imprisoned for debt in any civil action.”
N.M. CONST. art. II, § 21.

“There shall be no imprisonment for debt in this State, except in
cases
of fraud.”
N.C. CONST. art. I, § 28.
“No person shall be imprisoned for debt unless upon refusal to
deliver
up his estate for the benefit of his creditors, in such manner as
shall be
prescribed by law; or in cases of tort; or where there is strong
pre-
sumption of fraud.”
N.D. CONST. art. I, § 15.
156 HARVARD LAW REVIEW FORUM [Vol. 129:153
mesne
or final process, unless in cases of fraud.”
OHIO CONST. art. I, § 15.
“Imprisonment for debt is prohibited, except for the non-
payment of
fines and penalties imposed for the violation of law.”
OKLA. CONST. art. II, § 13.
“There shall be no imprisonment for debt, except in case of
fraud or
absconding debtors.”
OR. CONST. art. I, § 19.

“The person of a debtor, where there is not strong presumption
of
fraud, shall not be continued in prison after delivering up his
estate for
the benefit of his creditors in such manner as shall be prescribed
by
law.”
PA. CONST. art. I, § 16.
“The person of a debtor, when there is not strong presumption
of
fraud, ought not to be continued in prison, after such person
shall have
delivered up property for the benefit of said person’s creditors,
in such
manner as shall be prescribed by law.”
R.I. CONST. art. I, § 11.
“No person shall be imprisoned for debt except in cases of
fraud.”
S.C. CONST. art. I, § 19.
founded up-
on a contract.”
S.D. CONST. art. VI, § 15.
“The Legislature shall pass no law authorizing imprisonment for
debt
in civil cases.”
TENN. CONST. art. I, § 18.
“No person shall ever be imprisoned for debt.”
TEX. CONST. art. I, § 18.
“There shall be no imprisonment for debt except in cases of

abscond-
ing debtors.”
UTAH CONST. art. I, § 16.
“No person shall be imprisoned for debt.”
VT. CONST. ch. II, § 40(3), para. 4.
2016] APPENDIX: STATE BANS ON DEBTORS’ PRISONS
157
“There shall be no imprisonment for debt, except in cases of
abscond-
ing debtors.”
WASH. CONST. art. I, § 17.
founded on a
contract, expressed or implied.”
WIS. CONST. art. I, § 16.
fraud.”
WYO. CONST. art. I, § 5.
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